In Love With Lawsuits

Why Litigiousness Is a National Character Trait

BACK BEFORE CLAUS VON BULOW ever heard of Jeremy Irons, a judge who found the news media’s attitude toward the case puzzling put a question to a friendly television reporter.

“Why do you people treat this as a big-deal court matter? It’s not precedent-setting. The lawyers are good, but they’re hardly headliners. You don’t even have a murder. Nothing, in fact, but sex and money.”

“What else do you need?” asked the reporter.

Well, one would have to admit, nothing— if the legal system’s role is entertainment. In a sense we do think of the courtroom as theater. Every trial is inherently a dramatic production, a play, with plot, actors, audience, even authoritative critics whose collective review permanently determines success or failure. Perhaps that is why from the country’s earliest times ordinary people have derived pleasure from merely watching lawsuits.

A great judge, Learned Hand, once ranked litigation with serious illness or death as an experience to avoid. He was speaking, however, to the actual participants, not to the bystanders. Lawsuits have always furnished us with entertainment—not merely the catharsis of stage drama but the vicarious triumph and defeat of an athletic event. Litigation, after all, is also spectator sport, with clearly definable winners and losers and an identified stake. Criminal prosecution, medical-malpractice trial, libel suit, or child-custody battle—all of them engage our voyeurism and our vicarious participation. We exult with the victor, or we take from our commiseration with the vanquished the satisfaction of knowing that the problem is not ours.

IN THE Revolutionary era, courts often provided the only live entertainment— as well as a substitute for violence.

In a country where stage plays were at best rare commodities, if not entirely illegal (Massachusetts barred them until the 1790s), and newspapers appeared much less frequently than daily, the circuit court, coming to the county seat once or twice a year, provided the only live entertainment. When the main show included a conviction for murder or rape, the pastime produced a coda: public execution.

Law, as opposed to in-court activity, has always permeated American society. Our basic charters are, after all, nothing but legal documents: the Declaration of Independence, a wide-ranging indictment of George III; the Constitution, a carefully drafted tripartite contract among people, states, and national government. It hardly surprises us, therefore, that in Tocqueville’s famous phrase, every political issue turns sooner or later into a legal question.

This acute observation deals, however, with what one might fairly call the governmental role of law. It perceives law as a dominant, pervasive spirit, controlling and regulating the overall working of the entire body politic. Yet at about the time Tocqueville was sketching that magisterial view of law in the new country, another visitor was noting American attachment to law on a different, more personal level.

“The Americans are fond of law in one respect,” wrote the English novelist Frederick Marryat in 1837. “That is, they are fond of going to law. It is excitement to them, and not so expensive as in [England]. It is a pleasure to them which they can afford, and for which they gladly pay.”

Law thus served to amuse not only the spectators but also the participants, while providing a channel for energies that unchecked might have strained or torn the social fabric. Marryat’s comparison of English and American legal costs highlighted a significant feature of litigation here: the loser paid only his own expenses. In England he also footed the winning lawyer’s bill.

For the parties a lawsuit replaces physical combat. It permits them, as the Massachusetts federal judge Charles E. Wyzanski. Jr., once remarked, to “wager money instead of exchanging bloody noses.” Even during seasons of serious political unrest, the legal process has supplied a substitute for violence. In pre-Revolutionary Boston, for example, a coffeehouse scuffle between the radical whip James Otis and a royal customs commissioner, John Robinson, quickly translated into an action for damages. When Otis not surprisingly won, he accepted only so much of the two-thousand-pound verdict as covered his medical and legal expenses.

AT ABOUT THE SAME TIME, THE BOSTON TORY bookseller-printer-newspaper publisher John Mein learned how the legal process could accomplish direct political ends. A Scot, and thus ethnically unpopular in a society that regarded Charles Stuart as neither a prince nor bonnie, Mein had enraged the radicals by his hard-hitting journalism.